From the time a couple separates and at least one spouse begins the divorce process until the divorce is finalized, a lot of unexpected events can occur. One of those events could be the death of either you or your spouse. If the deceased spouse had a valid will in place, then the will, subject to some exceptions (namely the elective share rule discussed below), controls who should receive what, regardless of the state of your marriage. Thus, if you left your husband everything you owned in your will, but decided you wanted him out of your life and to receive nothing, he will still receive everything if you do not take steps to update your will. But simply writing a spouse from whom you are not yet divorced out of a will is not the end of the story in Virginia, which employs an elective share rule giving a surviving spouse the right to take some portion of the deceased spouse’s estate over the deceased’s stated wishes.
Virginia’s Elective Share Rule Explained
The purpose of the elective share rule in Virginia is to prevent spouses from leaving their spouses with insufficient property following a death by instead giving their property to others. Under the elective share rules that had been in place for many years in Virginia (and which still apply to spouses who died before January 1, 2017), a surviving spouse could choose between what he or she was left in a will and through other provisions or one-half of the so-called “augmented estate” of the deceased if there were no surviving children or descendants or one-third of the augmented estate if there were surviving children or descendants.
What is included in the augmented estate is a very complex calculation under the law, but it essentially includes the decedent’s property as well as gifts of property made before the death (meaning a husband or wife could not simply give away all their property before they died to get around the elective share rules).
An Important 2017 Change to Virginia’s Elective Share Rule
A new law in Virginia keeps the basic structure of the elective share concept but changes the numbers to give less of a share to surviving spouses who were not married to the decedent for very long before the death. For spouses who have died on January 1, 2017 or after, the surviving spouse’s new elective share will be a maximum of 50% of the “marital estate,” which is property earned or acquired by either spouse during the marriage, but the surviving spouse will have to have been married to the decedent for at least 15 years to get that full amount. There is a graduated scale of length of marriage that leads up to that amount, with spouses who were married to the decedent for less than a year entitled to only 3% of the 50% of the marital estate (in other words, 1.5% of the marital estate).
What About Desertion and Abandonment?
All of that brings us to the question of whether a spouse in the process of divorcing spouse is entitled to an elective share under either the old or the new rules. The answer is that, so long as the divorce is not final at the time of death, the parties are still married and the elective share rule applies with the exception for spouses who willfully desert or abandon their spouse.
The desertion or abandonment standard used in determining whether a spouse is barred from claiming the elective share is not necessarily the same standard upon which a spouse may file for divorce based on those same grounds. An example of when a spouse is barred from asking for the elective share is as follows: if a husband leaves his wife against her wishes and does not return before her death and does not divorce her, that will be considered desertion and he will not be entitled to an elective share. And in that same scenario, if he dies first, she will be entitled to an elective share because she did not willfully desert or abandon him. But where two spouses agree to separate and/or enter into the divorce process, this is not desertion or abandonment, and if one spouse dies, the other is free to seek an elective share.
Experienced Virginia Divorce Attorneys
At Kurylo Gold & Josey, PLC in Fredericksburg, Virginia, we will guide through all of your questions regarding your divorce, and help you work towards a favorable outcome in your family law matter. To schedule a consultation with one of our Virginia family law attorneys, contact Select Law Partners at 540.642.1766.
Matt Kurylo
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